Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CHAMBER SUMMONS NO. 371 OF 2019
IN
STAMP NO.1864 OF 2019
Christabel S. Fernandes and Ors. .. Plaintiffs
Versus
Municipal Corporation of Gr. Mumbai. .. Defendants.
And
Vijay K. Manthena .. Applicant
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 19th March, 2019
Mr. Yusuf Khan ld. adv. for plaintiff.
Mrs. Hajare, ld. adv. for defendant /BMC.
Mr.Rathod, ld. adv. for applicant.
O R D E R
1. This Ch/s is taken out by applicant Vijay Manthena for
adding him as defendant no. 2 in the suit. Applicant Mr. Manthena has
filed his affidavit in support of Ch/s contending that plaintiffs have filed
this suit against BMC for seeking reliefs of declaration that notice dated
03.07.2013 issued by BMC under sec. 354 of BMC Act is null and void
in respect of suit property i.e. Gomes Building, huse no. 82. Village
Ward, Father Peter Pereira Road, Kurla (W), Mumbai70. Plaintiffs
have also claimed relief of perpetual injunction against defendant/BMC
restraining it from demolishing suit premises.
2. It is mentioned in the affidavit of applicant that said
disputed notice under sec. 354 of BMC Act was issued by BMC on the
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complaint made by applicant in regard to illegal and unauthorised
construction. The cause of action arise for filing this suit on the basis of
complaint filed by applicant. It is alleged that applicant has made
complaint to BMC as plaintiffs have played mischief and illegally
making construction at suit premises. Applicant has contended that he
has made oral complaint as well as written compliant to BMC but BMC
has not taken any action. It is contended that after starting the business
by the owner started to make illegal construction at suit premises
without permission from society or BMC or any Government office.
Therefore applicant has given various complaint against said
constriction for taking appropriate action and for removing of said
illegal construction. Applicant has filed RTI application demanding
details of the action taken by BMC about complaint filed by the
applicant. According to the applicant for any construction it is
compulsory to obtain BMC permission. Inspite of filing RTI application
BMC has not taken any action against unauthorised construction at suit
premises and applicant has obtained photographs of said construction at
suit premises. Those photographs were given to BMC but no action is
taken by BMC.
3. It is alleged that plaintiffs have started construction at suit
premises without obtaining mandatory permission from BMC and said
construction is carried out by causing injury to all the residents of
society. Hence said construction is necessary to be stopped in the
interest of public at large. It is further contended that during pendency
of complaint of applicant filed with BMC plaintiff is trying to make
construction at suit site. Said fact was appraised by applicant to BMC
officer . However his grievance was not redressed and officers of BMC
have not paid any heed to application made by applicant. Therefore
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applicant filed Writ Petition No. 2669/2014 seeking directions against
BMC to take appropriate action against illegal construction. In said
Writ Petition, the Hon'ble High Court directed applicant to implead
owner of suit building as party to Writ and Hon'ble High Court passed
the order dated 09.06.2017 giving some directions to BMC. In said Writ
Petition , defendant/BMC made statement that steps for demolition of
illegal construction of plaintiffs are being taken and water supply and
electricity supply has been already disconnected. BMC has stated
before Hon'ble High Court that structures to be demolished is situated
in thickly populated locality hence BMC decided to appoint contractor
for carrying out the work of demolition and therefore Hon'ble High
Court disposed of said Writ Petition by order dated 07.03.2018. It is
alleged that plaintiffs have suppressed various facts from the Court for
seeking injunction in respect of notice issued by BMC. According to
applicant the action of Municipal Officers is based upon the complaint
of applicant. Therefore applicant is necessary to be impleaded as
defendant in the suit to decide the issues involved in the matter. It is
further contended that BMC is having various matters and BMC has not
placed all facts before the Court. On the other hand applicant is having
various documents and evidence to show that construction carried out
by plaintiffs is not legal. Therefore applicant has prayed to allow the
Ch/s.
4. Plaintiffs have filed affidavit of plaintiff no. 3 to resist the
Ch/s. In said affidavit it is contended that cause of action for filing
this suit is clearly pleaded in paragraph no. 32 of the plaint and the
cause of action mentioned in paragraph no. 2 of affidavit of applicant is
denied by plaintiffs. It is further contended that applicant is neither
owner nor tenant and therefore applicant has no right, title or interest
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in the suit property in any manner. It is alleged that applicant is
nothing but an extortionist. Plaintiffs have obtained certain
information against applicant and plaintiffs are in process of obtaining
evidence to prove that applicant is professional complaint who is
extorting money in the name of defendant/BMC. It is further
contended that plaintiffs are not aware about any complaint filed by
applicant. Further plaintiffs have contended that they are not aware
about Writ Petition no. 2669/2016 filed by applicant and plaintiffs were
not party to said Writ Petition. Hence they cannot comment about said
Writ Petition. It is denied that plaintiffs have suppressed many facts
from the Court. In their reply plaintiffs have referred observations of
the Hon'ble High Court from the case between Mohammad Hussain
Gulam Ali Shariffi Vs Municipal Corporation of Greater Bombay and
Ors. reported in 2017 (6) All MR 420.
5. It is contended that applicant has alleged about some
illegal and unauthorised construction on suit premises and applicant is
intending to stop construction of which plaintiffs were never aware of
it. Plaintiffs have challenged the notice issued by BMC under sec. 354
of BMC act and they came to know about various documents supported
by BMC to the affidavit of reply dated 16.02.2019. Thereafter plaintiffs
have also taken out Ch/s for amendment in the plaint. According to
plaintiffs in the light of observations in the case cited by them, this
Court is not required to adjudicate rights between applicant and
plaintiffs in respect of suit property. Hence applicant neither can
become necessary nor proper party to the suit. It is further contended
that validity of notice in question can be decided because plaintiffs will
prove their claim and BMC will try to prove the fact that disputed notice
is perfectly legal and valid. Hence applicant's presence in the matter is
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not at all necessary. It is contended that contentions raised by
applicant in present Ch/s are absolutely false, frivolous and fabricated
hence Ch/s is not maintainable. It is alleged that applicant has not
approached to the Court with clean hands and Ch/s is necessary to be
dismissed.
6. I have heard applicant's advocate Mr. Rathod and plaintiff's
advocate Mr. Yusuf Khan. I have perused the copies of documents
annexed to the affidavit filed by applicant in support of Ch/s. I have
perused copy of Order passed by the Hon'ble High Court on 09.06.2017
in Writ Petition No. 2669/14 and I have also perused copy of order
passed by Hon'ble High Court on 07.03.2018 in Writ Petition No.
2669/14. In order dated 07.03.2018 the Hon'ble High Court is pleased
to observe that " the learned counsel appearing for the second
respondent on instructions, states that the second respondent ha taken
steps for demolition of the illegal construction and water supply and
electricity supply has been already disconnected. She states that as the
structure to be demolished is situated in a thickly populated locality
having large number of structures, the second respondent has decided
to appoint a contractor for carrying out the work of demolition. We
accept the said statements. Considering the statements and what is
recorded in order dated 31.01.2018 this Petition need not be kept
pending and accordingly, we pass the following order:
(i) We accept the aforesaid statements made by the second
respondent. The Municipal Corporation shall take action of
demolition as expeditiously as possible in accordance with
law;
(ii) If action is not taken within reasonable time, the petitioner
can always make a representation to the Municipal
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Corporation ;
(iii) The Petition is disposed of on above terms
7. Copy of Writ Petition is also filed by applicant on record
and in said writ Petition it is mentioned that application is made by
applicant to BMC for taking action on the ground of violation of rules
and laws of the Maharashtra Municipal Corporation Act, on the address
as Opposite Holy Cross School, Father Peter Road, Behind House no.
74/A, Opposite United Social Welfare Association, Kurla (W), Mumbai
400 070.
8. On careful perusal of the plaint it is noticed that suit
property referred in the plaint is house no. 82, Village Ward, Father
Peter Pereria Road, Kurla, Mumbai400 070. Copy of disputed notice
filed at page no. 45 of the plaint shows that said notice was issued by
BMC to Mr. Josef Gomes for demolition of house no. 82, D'souza House,
Christian Village, Kurla (W) Mumbai70. Disputed notice is dated
03.07.2013. As mentioned in copy of Writ Petition filed by applicant in
support of his affidavit it becomes clear that on 27.03.2014 online
complaint about construction going on opposite Holy Cross School,
Father Peter Road, Behind House no. 74/A, Opposite United Social
Welfare Association, Kurla (W), Mumbai 400 070 was filed by him. In
said Writ Petition applicant has referred the incident which had taken
place after 27.03.2014. However disputed notice challenged by
plaintiffs in this suit is dated 03.07.2013. Hence it cannot be said that
disputed notice was issued by BMC on the basis of complaint made by
applicant. Further applicant has contended that he has made so many
oral and written complaints about construction going on suit premises.
However copies of any such complaint are not filed by applicant in
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support of Ch/s.
9. At this juncture it becomes necessary to refer here
observations of Hon'ble Apex Court in Mohammad Hussain Gulam Ali
Shariffi Vs Municipal Corporation of Greater Bombay and Ors.
reported in 2017 (6) All MR 420. In said case it is observed by Hon'ble
Apex Court that
“ In our considered opinion, having regard to the nature
of the controversy, which is the subject matter of the
suit, respondent Nos. 2 and 3 are neither necessary nor
proper parties. As would be clear from mere perusal of
the plaint, the basic question, which is required to be
decided in the suit, is whether notice issued Under
Section 351 of the Act by Respondent No. 1
(Corporation) to the Appellant is legally valid or not
(see prayer(a) in the plaint – page 251 of Volume II of
S.L.P. Paper Book).
To decide this question, in our considered opinion, the
only necessary and proper party to the suit is the
Mumbai Municipal Corporation, Greater Mumbai, i.e.,
Respondent No. 1, who has issued such notice, and for
deciding this question either way, the presence of
Respondent Nos. 2 and 3 is not at all required. In other
words, the suit can be decided even in the absence of
Respondent Nos. 2 and 3.
It is a settled principle of law, which does not need any
authority to support the principle, that the Plaintiff
being a dominus litis cannot be forced to add any
person as party to his suit unless it is held keeping in
view the pleadings and the relief claimed therein that a
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person sought to be added as party is a necessary party
and without his presence neither the suit can proceed
and nor the relief can be granted. It is only then such
person can be allowed to become party, else the suit
will have to be dismissed for nonimpleadment of such
necessary party. Such does not appear to be a case here.
We do not find that the presence of Respondent
Nos. 2 and 3 in the facts of this case is required for
deciding the legality of notice impugned in the suit on
merits because the dispute centers around the question
of legality and validity of the notice which, as
mentioned above, arises between Respondent No. 1,
who has issued the notice, and the person to whom it is
given, i.e., Appellant.
In the suit in question, the Court is not called
upon to adjudicate the rights between the Appellant and
Respondents Nos. 2 and 3 in relation to the suit house .
Any such dispute, if arises, the same can be decided in
the separate suit, which is pending between the parties
or may be filed, if required, by the parties against each
other but such dispute cannot be tried on the cause of
action pleaded in the present suit by the Appellant
where the lis is essentially between the Appellant
(Plaintiff) and Respondent No. 1. Merely because the
suit house is the subject matter between all the parties
is not ground to get the dispute arising between the
parties settled in one suit regardless of the nature of
cause of action on which the suit is founded”.
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10. In the light of observations of Hon'ble Apex Court from the
case cited supra, it becomes clear that applicant is neither necessary
nor proper party to this suit. Applicant has contended that disputed
notice challenged in this suit is issued on the basis of complaint filed by
applicant with BMC. As BMC has issued disputed notice and taken
action about alleged complaint of applicant it becomes clear that
definitely BMC will defend the suit and BMC will try to prove the fact
that disputed notice is perfectly legal. In such circumstances applicant
who has no concern with suit property cannot have any evidence to
disprove plaintiffs claim and therefore and in the light of observations
of Hon'ble Apex Court from the case cited supra, I proceed to pass
following order.
O R D E R
Ch/s No. 371/19 stands disposed of/dismissed.
(K.P.Nandedkar)
Judge,
City Civil Court,
19/03/2019 Gr.Bombay
Dictated on : 19.03.2019
Transcribed on : 22.03.2019
Signed by HHJ on : 22.03.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF Steno
22/03/2019 4.40 a.m. Y.S. Patil(H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of Judgment/Order. 19/03/2019
Judgment/order signed by P.O on 22/03/2019
Judgment/order uploaded on 22/03/2019
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